Ellul v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ellul v Allianz Australia Insurance Limited [2024] NSWPIC 491
CLAIMANT:	Jake John Daniel Ellul
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Shana Radnan
DATE OF DECISION:	5 September 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claim; injured person mostly at fault; motorcycle accident; lane filtering at front of entrance to roundabout over solid white line; breach of Road Rules 2014; Held – the motor accident was caused mostly by the fault of the injured person.
DETERMINATIONS MADE:	CERTIFICATE *Issued under s 7.36(4) of the Motor Accident Injuries Act2017* and cl 7.497 of the Motor Accident Guidelines The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.28 or s 3.36 the motor accident was caused mostly by the fault of the injured person. 2. Effective date: This determination takes effect on 5 September 2024. 3. Legal costs:** The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,919 plus GST.

STATEMENT OF REASONS

INTRODUCTION

This determination relates to a miscellaneous claim, which is a reviewable decision under Schedule 2(3)(e) of the Motor Accident Injuries Act 2017, about a claim lodged by the injured claimant arising from a motor accident which occurred on 21 January 2021.
The claimant sustained injuries when a collision occurred at a roundabout at the intersection of the Pacific Highway and Chittaway Road at Ourimbah in New South Wales.
The issue in this matter is whether the accident occurred solely due to the actions of the claimant who, while approaching the roundabout, attempted to lane filter under conditions where the insurer argued it was unsafe to do so and whether there was insufficient space between the two utility vehicles at the head of the queue for the claimant to undertake such a manoeuvre.
The claimant lodged an application for statutory benefits with the insurer on
22 January 2021.
The insurer issued a liability notice - benefits up to 26 weeks on 12 August 2020 declining the claimant’s benefits up to 26 weeks from the date of accident.
A liability notice issued on declining the claimant’s claim for statutory benefits after 26 weeks from the date of the accident as he was considered to be wholly at fault for the motor vehicle accident on the basis that he had lane filtered when unsafe to do so in breach of Regulation 151A of the Road Rules 2014. Relying upon sub-rule (2):
“The rider of the motor bike must not unlawfully lane filter along a length of road.
(3) For subrule (2), it is unlawful for the rider of a motorbike to lane filter along a length of road if any of the following circumstances apply –
(a) ...
(b) ...
(c) ...
(d) ...
(e) it is not safe to lane filter,”
Internal review of this decision was requested by the claimant. The insurer conducted a review of the decision and on 19 May 2021, Christina Boyadjian maintained the original decision.
The basis of confirming the original determination was that ‘I have found you to be wholly at fault for the motor accident for the following reasons’:
“a. (definition of lane filtering Regulation 151A Road Rules 2014 provided)
b. I note you have attempted to lane filter leading at the front of the roundabout road which requires vehicles to enter and manoeuvre a roundabout containing two lanes (one proceeding left and one proceeding straight). I am thereby of the view you were attempting to lane filter between two utes which were traveling in different directions, a ute which turned left and that which proceeded straight Regulation 151A of the Road Rules 2014 outlines that ‘the rider of a motorbike is lane filtering along a length of road if the rider rides the motor bike between vehicles, each vehicle travelling in (a) the same direction as the motorbike, and (b) separate, but adjacent, marked lines or lines of traffic’.
c.     Furthermore, as an approach is made towards the front of the roundabout where the Insured driver was located, I note the presence of a single dividing line between the lanes turning left and proceeding straight as shown in the Factual I note you have attempted to lane filter over a single dividing line.
d. You have also attempted to lane filter between two utes. An example of when lane filtering is not safe under Regulation 151A of the Road Rules 2014 includes ‘A rider lane filtering between vehicles in a manner that does not seek to avoid collision (including lane filtering between vehicles when there is insufficient clearance between those vehicles)’. I am not satisfied you have maintained a safe distance between the vehicles in front whom entered the roundabout.
e.      The Insured driver has also indicated the impact to be towards the left rear of his Ute tray. I thereby do not find that you had successfully made your way across and in front of both vehicles who were already situated at the front of the roundabout and moving into the roundabout in different directions, making your presence known.
f.     I further note inconsistencies within your statement and the police report. In particular, the police report outlines that the vehicle on your left has turned slightly right into you, pushing you into the right and into Vehicle 2. Vehicle 1 situated on your left has subsequently driven off. This inconsistency is also present within the NSW Ambulance Report, which states ‘Pt states he was riding along road, when one of the vehicles changed into his lane, pushing him against another vehicle. Pt then fell over with bike at lowspeed’. In your statement dated 17 February 2021 you have however alleged that both vehicles attempted to block you at the front of the roundabout. Based on the Insured's version provided, I am not satisfied he had attempted to block you, furthermore noting that the Insured was keeping a lookout for vehicles moving through the roundabout waiting for a gap in the traffic. The Insured subsequently noticed you as he began to move into the roundabout and felt something strike the rear left-hand side of his vehicle.”
The claimant lodged with the Personal Injury Commission (Commission) an application for a determination of fault on 18 December 2023.

Circumstances of the accident

The parties are in dispute in relation to the actual circumstances surrounding the accident. The insurer made reference to a number of versions the claimant had produced in this matter.
The insurer relied on the following written submissions:
“The Evidence
1.     The New South Wales Police Force COPS report contains the following account:
‘Initial version – at 5.00 pm on Thursday 21.1.21, veh 3 was lane filtering through
heavy traffic, travelling south approaching the roundabout of Chittaway and
Pacific Highway. Veh 1 was in lane 1 and veh 2 was in lane 2 of 2. As veh 3
stopped between the other vehicles, veh 1 has slightly turned right inwards,hitting veh
3 and pushing him into veh 2.
Veh 1 has then immediately turned left onto Chittaway Road and failed to stop to
render aid or swap details.
The rider of veh 3, Jake ELLUL has dropped his motorcycle and felt pain to his left side. Veh 2 has continued through the roundabout before being waved down to stop a short distance south of the roundabout.
Veh 3 has stood his motorcycle up and rode it through the roundabout to meet
with veh 2 and exchange details. Veh 2 had no damage to the vehicle and stated he
was unaware what had happened to cause it, only that he saw the motorcycle in his
side mirror after the incident.’
2. The police report goes on to state that on 20 February 2021, the police met with Terry Bignell at Wyong Police Station and completed a form of demand under s 177 of the Road Transport Act 2013.
3. On 2 March 2021, police met with the claimant at Wyong Police Station and completed a form of demand under s 177 of the Road Transport Act 2013. The claimant provided details which did not match Bignell’s version in that he stated he stopped in between the two vehicles and when he went to take off with the other vehicles, he was hit from the right side and dragged forward into the roundabout. Further, he stated Bignell did not attempt to pull over and once he did in a nearby bus bay, Ellul told him numerous times to fxxx off and not to speak to him.
4.     New South Wales Police attempted to obtain a statement from a witness, however, she advised she did not wish to assist with the investigation. Consequently, in light of the contradictory evidence and that vehicle 1 left the scene, it was the position of police that it was a failure of the rider, Ellul, to navigate lane filtering in the appropriate/safe manner.
5. A form of demand under the Road Transport Act 2013, s 177 was issued on the claimant by Constable Felicity McWhirter of Wyong Police Station. It was alleged that at 5.00 pm on Thursday, 21 January 2021, the claimant was the rider of motorcycle RBE64, which was involved in a collision at the intersection of the Pacific Highway and Chittaway Road roundabout.
6.      The claimant provided the following version of events:
‘So I’ve exited the motorway onto Pacific Highway heading towards West Gosford. Came up to the lights at the RSL I noticed there was a lot of standstill traffic from the roundabout down. I made an educated guess to lane filter towards the roundabout from the lights all the way up to the roundabout. I was lane filtering about 10 to 20 km/h. I approached the start of the queue to the roundabout. I had two 4WD. The one on the right had a silver tray, dual cab white and the left was another white dual cab with tub and canopy. No other markings. So as soon as I came in between those two vehicles, the front left of the vehicle on the right, he has done a short quick move to the left and hit the brakes which has hit me. I’ve been observing another car from the opposite direction which was coming around and they stopped as they thought he was going into the roundabout. He has pushed me against the car on the left of me. That car was already moving to turn left down Chittaway Road. They have hit me and pushed me against the right car as the right car has moved forward through the roundabout, my handlebars got stuck on the pillar where his mirrors are and he has dragged me into the roundabout. The bike has then fell on top of me in the middle of the roundabout. He then stopped on the other side of the roundabout and I picked the bike up. Once I did, he took off heavy footed. I chased him up with two other cars and he wouldn’t stop. He moved from the right lane to the left lane while I screamed for him to stop. I went in front of his car and signalled for him to pull over. We finally did in the busway opposite King Street. I told him to ‘fuck off’ and not to speak to me. As I was very angry at the situation, I did take a photo of his car rego and got my partner to get his details.’
7.      At paragraph 8 of the demand, the claimant was asked what his plan was when he reached the front of the queue to the roundabout, to which he responded:
‘I was going to wait for a safe spot to enter the roundabout.’
8.      He subsequently stated:
‘I was planning to place my feet down and stop in between them at the entry to find a safe spot to enter and take off into the roundabout.’
9.      The claimant stated he was in line with the front quarter panels, in line or slightly in front of the front passenger window and that it all happened quickly as he came up and hit the claimant.
10.    The claimant also stated that the insured driver did not hit the brakes until after he had hit the claimant. He reported a short quick move to the left, striking the claimant and then hitting the brakes.
11.    Terry Bignell, the insured driver of vehicle registered CW 19 EA, a Holden Colorado tray back utility, provided a statement to the police to the effect that on 21 January 2021, at approximately 5.00 pm, he was travelling in a southerly direction on the Pacific Highway at Ourimbah.
12.    As he approached the roundabout at Chittaway Road, he was in the right hand lane and had stopped at the front of the traffic queue. He described the traffic to be heavy and slow.
13.    Mr Bignell was waiting for vehicles turning right from the south (opposite direction) and had been at the front of the queue for some time waiting for a gap in the traffic. When there was a break, he moved into the roundabout:
‘… maintaining my position in the right hand lane. As I began to move into the roundabout I felt something strike my vehicle. It felt as though something had struck the rear left hand side of my vehicle. By the time I realised this I was already moving into the roundabout, and there were cars continuing to come around the roundabout from the south.’
14.    Mr Bignell stated that he checked his mirrors and saw a motorcyclist behind him. He could not tell exactly where he was or where he had come from and he had not seen or heard him at any point while moving towards or waiting at the front of the roundabout queue. He noted it looked as though he was close to the start of the roundabout and whilst he wasn’t lying on the ground, it looked like he was off his bike and trying to stabilise his motorbike. It was at that point that Bignell realised the bike had somehow come into contact with his vehicle.
15.    The witness confirmed that the first time he saw the claimant was when he checked his mirrors as he moved through the roundabout.
16.    After exchanging details with the claimant, and obtaining his account of what had occurred, the witness called police and ambulance.
17.    He also spoke to a passenger of another vehicle who informed him that the vehicle in the left hand lane had hit the claimant, who then hit the tray of Bignell’s vehicle. Bignell asked where the impact to his vehicle was and the witness reportedly said to the tray of the ute.
18.    As police did not attend the scene, Bignell called Gosford Police Station at 6.03 pm to report the incident. He was contacted by police at 7.46 pm.
19.    The New South Wales Police documentation contains an extract from the police notebook of Senior Constable Pullen, which contains a statement of a witness who was 61 years of age and who on the night of the accident, was driving southbound on the Pacific Highway at Ourimbah.
The statement is to the following effect:
‘I approached the roundabout at Chittaway Road and Pacific Highway. Traffic was heavy. I was stopped at approximately four cars back from the roundabout. I was stationary in lane 1. I saw a motorbike driver and passed me in between lane 1 and lane 2 and stopped at the entry of the roundabout. The motorbike was in between two vehicles. The white ute being in lane 2 and another vehicle in lane 1 also stationary wanting to proceed through the roundabout. As the three vehicles proceeded to enter the roundabout I saw the motorcyclist appear to correct the motorbike. Then I saw the bike and rider fall to the right side of the road. Next I saw the rider mount the motorbike. I noticed the white ute to continue to drive southwards along the Pacific Highway through the roundabout. I saw the motorbike accelerate forward. I drove slowly and sighted the rider and ute exit the roundabout. It appeared the rider had caught up with the ute. I saw the rider looking in the direction of the ute driver. It appeared the rider got the ute’s attention as both rider and the ute pulled over in the bus bay opposite Glenn Road, Ourimbah. I then pulled over to offer assistance.’
20.    Suzanne Robyn Browne provided a statement to Lee Kelly Investigators on 22 February 2021.
21.    She stated she was driving along the Pacific Highway in a southbound direction, towards the roundabout with Chittaway Road and the Pacific Highway. She was behind the vehicles involved in the incident and saw the claimant riding very slowly through the centre of the two lanes of the southbound traffic towards the roundabout. At that time, there was a white utility on the motorcyclist’s right hand side and another vehicle on the left hand side. The three vehicles were waiting to give way before beginning to continue on through the roundabout.
22.    As the vehicles moved off to proceed through the roundabout, the utility on the right hand side made contact with the motorcycle. The motorcyclist then contacted the vehicle on the left and was knocked to the ground.
23.    The claimant consented to an interview with Michael Pearson of Lee Kelly & Associates, which took place on 17 February 2021.
24.    Relevant to the subject dispute, in response to question 80, he reported:
‘There was a fair bit of traffic just all the cars were stopped um, and I then started to lane filter with the middle of the cars. Just at a steady idle um, obviously to be able to have control of the bike … As I approached.. the end of the lane filtering at where the roundabout is.., the car … both cars were stationary. I had a ute on my right and I had another ute on my left and I remember seeing a car coming from the other direction to turn onto Chittaway Road from Pacific Highway. So that car was coming … as that car was making that turn …
… So, as that car was coming I’ve seen it so I started to slow down. I had the clutch in and just started to apply some of my brake and I’m pretty sure I had my feet out by that stage and it just all happened so quick and also simultaneously. As I’ve seen the car, the ute on the right swerved over like a … just a quick jolt like to stop me from coming through to block the access. As he's done that, he's hit me and pushed me up onto the other ute on the left hand side and at the exact same time the other ute on the left hand side hit me and pushed me back onto him. So, they both had the exact same thought process of blocking me coming to the front of the line.’
25.    The claimant was asked a series of questions which are replicated below:
‘Q83 … So, if we take a step back, when you say lane filtering, you were driving down
the middle of two lanes..
A Yes.
Q84 … to reach the front of the queue…
A Yeah.
Q85 … and just as you approached the front the vehicle which was a utility on your
left …
A So, yeah.
Q86 ... stayed stationary …
A The one ...
Q87 ... but the vehicle on your right came across ...
A Came across.
Q88 ... and pushed you into that vehicle on the left?
A Yeah and then he pushed me back onto that vehicle on the right. So ...
Q89 So, that vehicle on the left then moved forward and pushed you back towards the
other vehicles?
A Yeah.
Q90 So, in a wedge style ...
A Yes.’
26.    The claimant proceeded to report that the car that was coming through the roundabout must have seen the vehicle on his right and anticipated he was going to pull out in front of him. That vehicle stopped or:
‘… they just kept going as well but um yeah, so the guy on the right, the utility he
came out with that, that quick sharp little turn to like block me and he hit me
which then forced me onto the other car but as he’s hit me, instead of me just
falling with the bike ‘cause it’s so heavy, the car on the left has done the same
thing and they've wedged me’.”

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties including final submissions of the claimant uploaded onto the Commission’s portal on 31 July 2024. The insurer made no further submissions and relied upon the original submissions contained in its reply.

Police report

Police did not attend the scene, report dated 31 March 2021 confirms crash summary as:
"At 1700 on Thursday 20.1.21 vehicle 3 belonging to ELLUL was lane filtering through heavy traffic approaching the roundabout on Pacific HWY connecting with Chittaway Rd when he stopped between two Utes at the front of the queue. Vehicle 1 was on his left, nearside, and has turned slightly right into ELLUL connecting with the right side of his motorcycle, pushing him to the right, into VEH 2.
VEH 1 has then turned left down Chittaway Rd and has failed to stop to provide aid and details.
ELLUL stated he believes that VEH I’s front light may have smashed on impact as there was debris on the road and he heard a smashing sound.
VEH 2 has proceeded to continue straight through the roundabout before being waved down by witnesses and stopped a short distance away. There was no damage to VEH 2."

Ambulance record

The history taken was recorded as follows:
"CT male pt motorcycle rider wedged between two vehicles. OA pt sitting at bus shelter. One of the drivers on scene, other driver absconded. Pt states he was riding along road, when one of the vehicles changed into his lane, pushing him against another vehicle. Pt then fell over with bike at low speed. Pt pushed motorcycle over to side of road. OE pt alert, oriented, well perfused, sweating in hot bus shelter. Pt CO pain to left knee. Pt denies LOC, no obvious damage to helmet. Nil other pain or injuries detected. Pt states he has already had multiple surgeries to left knee due to previous workplace injury. Pt very concerned he has injured the cartilage in his knee. Left knee slightly swollen, good range of movement, pt able to weight bare. Pt's partner arrived on scene Pt adamant he would not go to hospital until he had ridden his bike home to Horokan as it was not insured. Pt adamant that he is safe to ride his motorcycle home.”

Wyong Hospital records

Contained in the clinical notes is the following history:
"PC
Riding his Harley motorcycle today at Ourimbah. Wearing open-face helmet, jeans and shirt.
Rode up between two cars stopped at dual-lane roundabout
Both cars took off at same time and wedged Jake between them (mostly his legs between their front wheel area-fell to ground in roundabout, not run over.
He jumped up, picked up his bike up and chased after one of the drivers who hadn't stopped and they subsequently did.
Ambulance called - Jake wanted to get his bike home however
Rode home, got changed and his partner drove him to ED Now c/o pain in left groin and knee and left chest."

Claimant’s version of events

The application for personal injury benefits recorded the following history:
“At approximately 17:02 on the 21/1/21 I was a victim of a motorcycle vehicle accident.
The incident occurred at the roundabout at Pacific HWY and Chittaway Rd Ourimbah heading southbound.
Traffic was very heavy and at a near standstill/crawl at approximately no faster then 5-10kms per hour.
I (Jake Ellul) made a safe and calculated decision to filter through the traffic at approximately 15-20kms per hour. As I (Jake Ellul) approached the 2 lane roundabout both cars were stationary.
I (Jake Ellul) observed another car coming from the opposite direction halfway through the round about making a right turn onto Chittaway Rd.
As I (Jake Ellul) approached the round about the Ute (CW-19-EA) to my right hand side could not proceed and was stopped at this point due to the other car in opposite direction making the turn on to ChittawayRd.
The Ute (CW-19-EA) observed myself (Jake Ellul motorcycle RBE64) filtering the traffic and coming up the passenger side of the Ute (CW-19-EA) when suddenly the Ute (CW-19-EA) made a sharp and last minute turn to their left to block myself (Jake Elull motorcycle RBE64) from coming in front of the Ute (CW-19-EA) which caused the Ute(CW-19-EA) to hit myself (Jake Ellul) and bike (motorcycle RBE64) and pushed myself (Jake Ellul motorcycle RBE64) into the other car on my left hand side. The Ute (CW-19-EA) continued to drag myself (Jake Ellul motorcycle RBE64) halfway through the roundabout causing the car in opposite direction to. The Ute (CW-19-EA) then stopped on the other side of roundabout while I (Jake Ellul) was laying In the middle of the roundabout with the bike on top of me (Jake Ellul RBE64). I (Jake Ellul) managed to get out from under the bike (RBE64) and pick it up and at that stage the Ute (CW-19-EA) that caused the accident continued to drive off. Myself (Jake Ellul) and 2 other drivers from other cars had to chase the Ute (CW-19-EA) and force him to stop and pull over to exchange details.
I (Jake Ellul) have attend hospital with injuries. The bile (sic) (RBE64) also has a lot of damage".
Claimant’s statement provided on 3 May 2021 by former solicitors acting:
“7.     I was riding my motorcycle along Pacific Highway and approached the roundabout at the intersection of Chittaway Road, Ourimbah. The traffic was very heavy. I lane filtered to the front of the queue and was stationary between two vehicles in a dual lane road. The one of my right side was bearing registration number CW19EA and driven by Terry Bignell. I do not have the details of the vehicle that was on my left side.
8.     As both cars took off, the Ute that was on my right side, moved left causing me to become wedged between the two vehicles and also causing the vehicle that was on my left to also collide into me.
9.     I was then dragged halfway through the roundabout. An oncoming vehicle that was turning onto Chittaway Road had to stop suddenly.
10.    I was then laying on the road in the middle of the roundabout with my motorcycle on top of me. The Ute that was on my right side stopped at the end of the roundabout and as I was getting up, the Ute drove off.
11.    The car that was on my left side also drove off and I had no time to obtain their details.”
The claimant provided a statement to Michael Pearson on 17 February 2021 with the following responses to questions:
“Q79 You've taken the Ourimbah exit?
A Exit, Yep.
Q80 And then what occurred from there?
A Taken the Ourimbah exit, Um, making my way towards West Gosford. Um, I've come past the Shell service station on your left hand side, coming up to the RSL Club area there’s a set of light and from there to be the roundabout of where the accident occurred um, there was a fair bit of traffic just all the cars were stopped um, and I then started to lane filter with the middle of the cars, just at a steady idle um, obviously to be able to have control of the bike. You've got to have the bike moving. Um, and as I approached ah, the end of the lane filtering at where the roundabout is, um, the car., both cars were stationary. I had a ute on my right and I had another ute on my left and I remember seeing a car coming from the other direction to turn onto Chittaway Road from Pacific Highway. So, that car was coming'...as that car was making that turn...
Q81 So, that car would have been going around the roundabout, it would have gone across the front of your vehicle?
A Yes.
Q82 Yeah. Okay
A Yes. So, as that car was coming I've seen it so I started to slowdown. I had the clutch in and just started to apply some of my brake and I'm pretty sure I had my feet out by that stage and it just all happened so quick and all so simultaneously. As I've seen the car, the ute on the right swerved over like a ...just a quick jolt like to stop me from coming through to block the access. As he's done that, he's hit me and pushed me up onto the other ute on the left hand side and at the exact same time the other ute on the left hand side hit me and pushed me back onto him. So, they both had the exact same thought process of blocking me coming to the front of the line.
Q83 Right. So.lf we take a step back, when you say lane filtering, you were driving down the middle of two lanes,.
A Yes.
Q84.. to reach the front of the queue,.
A Yeah.
Q85... and just as you approached the front the vehicle which was Utility on your left..
A So, yeah
Q86...stayed stationary
A. The one..
B.
Q87.. but the vehicle on your right came across..
A Came across
Q88 ..and pushed you into that vehicle on the left?
A Yeah and then he pushed me back onto that vehicle on the right. So..
Q89 So, that vehicle on the left then moved forward and pushed you back towards the other vehicles ?
A Yeah.
Q90 So, in a wedge style...
A Yes.
Q91..Situation?Okay. I understand.
A And because that happened, I remember the car that was cornin' around the roundabout s... must have seen the guy on the right of me do that and thought that he was gonna pull out in front of him. So, they've stopped um, and now I'm not sure if they, they stopped and seein it or they just kept going as well but um, yeah. So the guy on the right, the Utility he came out with that, that quick sharp little turn to like block me and he hit me which then forced me onto the other car but as he's hit me, instead, instead of me just falling with the bike 'cause it's so heavy, the car on the left has done the same thing and they've wedged me. The car on the left took off down Chittaway Bay Road.”

Insurer’s version of events

The insured provided the following history to investigator Michael Pearson:
"As I approached the roundabout (at Chittaway Rd) I was in the right hand lane and I stopped at the roundabout at the front of the traffic queue. There was a fairly long line of traffic as I approached. The traffic was quite heavy and slow.
I was watching for vehicles turning right from the south (opposite direction) and there was quite a lot of traffic moving through the roundabout I was in the front of the queue for some time waiting for a gap in the traffic. When there was a break in the traffic I moved into the roundabout maintaining my position in the right-hand lane. As I began to move into the roundabout I felt something strike my vehicle. It felt as though something had struck the rear left-hand side of my vehicle. By the time I realised this I was already moving into the roundabout, and there were cars continuing to come around the roundabout from the south.
As I moved through the roundabout I checked my mirrors and saw the motorcyclist behind me. I couldn't tell exactly where he had come from. I had not seen or heard him at any point while moving towards or waiting at the front of the roundabout queue. He looked as though he was close to the start of the roundabout. He wasn't lying on the ground but it looked like he was off his bike and trying to stabilise his motorbike and I realised that his bike had likely somehow come into contact with my vehicle."
Further he commented:
"The motorcyclist said that another vehicle that was in the left hand lane next to me at the roundabout had hit him and driven off (turning left at the roundabout) without stopping. He also said that my vehicle had hit him. I was trying to keep some distance between us as he was quite aggressive. This went on for a few minutes and he kept implying that I was at fault, as well as the other driver, who did not stop. I felt that I was not at fault.”
The insured driver also spoke to one of the passengers within one of the cars parked behind him and states as follows in his version of events:
"At some point, I asked the passenger through their open window in one of the cars that was parked behind me in the bus lane what had happened. (I don’t remember this driver or passenger ever getting out of their car). The passenger said that the vehicle in the left hand lane had hit him and drove off and then my vehicle hit him. I said "where did it hit him?" and the lady said that the tray on my ute hit him"

Witness version of events

A statement was provided by Suzanne Robyne Browne dated 22 February 2021. The relevant paragraphs of note were:
" 5.    At the time of the motor vehicle accident, I was driving along the Pacific Highway southbound towards the roundabout at Chittaway Road and Pacific Highway at Ourimbah. I was behind the vehicles involved.
6.     I saw that a motorcycle rider rode (very slowly) through the centre of the two lanes of the southbound traffic towards the roundabout, in readiness to give way and proceed through the roundabout. At the time, there was a white utility on the motor cyclist's right hand side and another vehicle on the left-hand side of the motorcycle, with the three vehicles waiting to give way before beginning to continue on through the roundabout.
7.     As the vehicles moved off to proceed through the roundabout, the utility on the right hand side of the motor cycle made contact with the motor cycle, then the motor cyclist was contacted by the car on his left. The motorcyclist was knocked to the ground.
8.     Neither the car or utility stopped at that time.
9.     The motor cyclist got back on his bike and chased the utility, going in a southerly direction on the Pacific Highway. The motor cyclist was able to get the ute driver's attention Just south of the roundabout and they stopped in a Bus bay further on, which was a safe spot to stop. They stopped to exchange details and arrange for police and ambulance to attend.
10.   The car on the left- hand side at the time of the accident turned left at the roundabout into Chittaway Road and failed to stop.”
The New South Wales Police documentation contained an extract from the police notebook of Senior Constable Pullen, which contains a statement of a witness who was 61 years of age and who on the night of the accident, was driving southbound on the Pacific Highway at Ourimbah.
The statement is to the following effect:
“I approached the roundabout at Chittaway Road and Pacific Highway. Traffic was heavy. I was stopped at approximately four cars back from the roundabout. I was stationary in lane 1. I saw a motorbike driver and passed me in between lane 1 and lane 2 and stopped at the entry of the roundabout. The motorbike was in between two vehicles. The white ute being in lane 2 and another vehicle in lane 1 also stationary wanting to proceed through the roundabout. As the three vehicles proceeded to enter the roundabout I saw the motorcyclist appear to correct the motorbike. Then I saw the bike and rider fall to the right side of the road. Next, I saw the rider mount the motorbike. I noticed the white ute to continue to drive southwards along the Pacific Highway through the roundabout. I saw the motorbike accelerate forward. I drove slowly and sighted the rider and ute exit the roundabout. It appeared the rider had caught up with the ute. I saw the rider looking in the direction of the ute driver. It appeared the rider got the ute’s attention as both rider and the ute pulled over in the bus bay opposite Glenn Road, Ourimbah. I then pulled over to offer assistance.”

Submissions of claimant

The claimant submitted that he was neither wholly nor mostly at fault in the motor accident. He submitted the following to support his proposition:
“2.1. The geography and layout of the accident site are clear from the photographs and maps relied upon in the annexure of the insurer's submission.
2.2. The claimant specifically relied on a particular photograph attached to the claimant's document which shows the perspective that witness, Ms Suzanne Robyn Browne would have had of the incident. Please refer to Annexure JE1 and page 70-79 of Annexure JE2.
2.3. Importantly, the photo clearly shows a two lane road with ample space for a lane filtering motorcycle to pass safely between traffic.
2.4. It is clear from the photo specifically relied upon by the claimant that it is not a 'tight’ traffic.
2.5. It is not in dispute that the insured driver was driving a longer than usual vehicle, a utility with a tray back and he owned a duty of care to other road users in the respect of the matter of which, he drove this vehicle and keep a look out of other users.
2.6 The claimant submits that it is inherently unlikely that the insurer did not see anything.
The claimant was interviewed by Micheal Pearson and in answer to question 82 at page 10 of the interview record, clearly stated that he had “the clutch in and just stated to apply some of my brake” and furthermore “had my feet out”. These comments confirm that, at the very least, the claimant was near to the insured vehicle in the process of stopping to allow traffic already in the roundabout to pass. (Please refer to page 196 of Annexure JE2.) It should be noted that this accident occurred during a busy period and the traffic should have been traveling slowly. We note that the insured driver has commented that ‘the traffic was heavy and slow’.
2.7. Noting the width of the lane as indicated in the abovementioned photo, it would be accepted that in order for the claimant to have been locked (sic) off his bike and suffered an injury. It is more likely than not that the insured driver had ‘swerved over like a …just a quick jolt like to stop me from coming through to block the access’. Please refer to the response to question 80.
2.8. We submit on behalf of the claimant that the insured driver should have moved out of his lane to strike the claimant.
2.9. We submit that the Lee Kelly investigation report page 77, shows the point of impact is consistent with the claimant’s version of event. The claimant provided a consistent version of the moment of the incident on 17 February 2021 and 2 March 2021. On page 120, it stated that ‘I was right up in line with his front quarter panels, in line or slightly in front of this front passenger window’.
2.10. We submit that the insured driver breached his duty of care by moving left and out of his lane in a dangerous manner and struck the claimant.
2.11. The insured driver’s version of not seeing the vehicle should not be accepted, noting consistency of the claimant’s statements and the NSW Police Force COPS entry dated 8 May 2021 where it is noted at page 10 of the entry that the claimant had stopped. Please refer to page 122 of annexure JE2. The witness, Ms Browne has stated that “I was stopped about approximately 4 cars back from the roundabout. I was stationary in lane 1. I saw a motorbike drive up and pass me in between land 1 and lane 2 and stopped at the entry of the roundabout. The motorbike was in between 2 vehicles.” Please refer to page 143 of Annexure JE2.”

Submission of the insurer

The written submission of the insurer were as follows:
“The law with respect to lane filtering
27. The Road Rules 2014 – Regulation 151A sets out the rules associated with lane filtering between vehicles on a motorbike.
28.    The Rules permit the rider of a motorbike to lane filter along a length of road if the rider rides the motorbike between two vehicles, each vehicle travelling in:
(a) the same direction as the motorbike, and
(b) separate, but adjacent, marked lanes or lines of traffic.
29.    Subrule (3) sets out where it is unlawful for the rider of a motorbike to lane filter including:
30.    In the subject circumstances, the evidence establishes that the utilities in lanes 1 and 2 were stationary in the line of traffic when the claimant was attempting to lane filter between them.
31.    It is apparent from the evidence of both the claimant and the insured driver that the claimant had not reached the front of the queue at the point at which the insured driver commenced to enter the roundabout. In addition to the witness statements supporting this proposition, as a matter of common sense, the point of impact between the insured vehicle and the claimant’s motorcycle also supports that contention.
32.    Whilst the claimant asserts that the insured driver, and the driver of the unidentified vehicle attempted to block him at the front of the roundabout, it is submitted that would not be accepted when having regard to the evidence as to the respective positions of the vehicles at the point the insured driver entered the roundabout, the point of contact with the rear tray of the insured vehicle, and the position of the claimant when first observed by the insured driver.
33.    The insurer points out that the evidence of the insured driver is to the effect that he did not see the claimant until after the collision. If that evidence is accepted, the claimant’s assertion that the insured deliberately attempted to block him from lane filtering, must be rejected.
34.    It is the insurer’s submission that the accident occurred solely due to the actions of the claimant who, on the approach to the roundabout, was attempting to lane filter in circumstances where it was unsafe to do so due to the approach of the roundabout, the heavy build up of traffic, and that there was insufficient space between the two utilities which were at the head of the queue of the roundabout.
35.    The insurer submits that the evidence does not support a finding that the claimant was        stationary at the front of the queue of the roundabout. Rather, it is the insurer’s position that the claimant was still in the process of lane filtering when the vehicles commenced to move off from the roundabout.
36.    The insurer submits the evidence supports the following findings of fact:
(a) the insured vehicle was stationary in lane 2, at the front of the queue of the southbound traffic, waiting for a break in traffic to enter the roundabout;
(b)the unidentified utility was stationary in lane 1, at the front of the queue of the southbound traffic, waiting for a break in traffic to enter the roundabout;
(c) the claimant was attempting to lane filter and was positioned at the rear of the utilities in lanes 1 and 2 when those vehicles commenced to enter the roundabout;
(d)the insured driver proceeded into the roundabout, staying wholly within the right hand lane when at a point, shortly after taking off, the claimant’s motorcycle has impacted with the rear tray of the insured utility, causing the claimant to lose balance and to impact with the rear of the unidentified utility in the left lane.
37. In addition to the above submissions, the insurer relies upon the findings of the internal reviewer set out in the certificate dated 19 May 2021, with respect to the claimant’s breach of the Road Rules and specifically, the following:
(a)    The claimant was attempting to lane filter between two utilities which were travelling in different directions, namely the utility in lane 1 which was turning left and the utility in lane 2 which was proceeding straight.
(b)     The claimant was lane filtering when it was unsafe to do so. This submission is supported by the fact that a collision occurred between the vehicles in circumstances where it is submitted it would not be found that the insured driver undertook any deliberate or sudden manoeuvre. Rather, the insured driver was proceeding into the roundabout, maintaining his lane as he was entitled and required to do so and it was the actions of the claimant, who was in an unsafe position between the respective vehicles when they entered the intersection.
38.    In the circumstances, it is the insurer’s submission the claimant was wholly or mostly at fault for the collision.”

Evaluation of the evidence

Having reviewed the statements, records, photographs and submissions I find that the accident occurred very close to the commencement of the roundabout in proximity to a solid white line between lanes 1 and 2 travelling in a southerly direction on the Pacific Highway at the intersection of Chittaway Road, in Ourimbah.
The location is marked with a red arrow in the photographs 6,7,8,12 and 13 contained in the investigation report of Lee Kelly Commercial Investigations dated 15 March 2021 (document R3). The claimant agreed that the location shown in photograph 13 was an accurate location of the collision.
Whilst the claimant has formed a view that both the drivers in lanes 1 and 2 manoeuvred their vehicles to effectively block him from entering the intersection, the evidence of the insured’s driver was that he had not any knowledge of the claimant until after the impact was felt at the left rear of his ute and he had proceeded into the roundabout. I accept the insured’s driver did not have the intention to block the path of the claimant.
The driver of the utility stationary in the left lane could either have turned to the left or gone straight ahead as the lane markings allow for both as depicted in the investigation photographs. There is no evidence from anyone that this utility had any indicators on or that any were seen operating by the claimant before the collision. Only after the alleged impact was it know that the utility turned left into Chittaway Road. The identity of this driver was not obtained as he did not stop and it is possible, he was unaware of the collision or any impact with the claimant.
The driver of the utility in lane 2, the insured in this claim could either go straight ahead or turn to the right. This is confirmed by the lane marking that showed a straight arrow and turning arrow for both lanes as depicted in photograph 12 on page 77.
It is clear from the statements of the claimant, the insurer and Ms Browne that the two utilities were at the head of the lanes of traffic and were waiting for the vehicles coming from the south to clear the roundabout before they could enter it.
The insured’s driver stated:
"As I approached the roundabout (at Chittaway Rd) I was in the right hand lane and I stopped at the roundabout at the front of the traffic queue. There was a fairly long line of traffic as I approached. The traffic was quite heavy and slow.
I was watching for vehicles turning right from the south (opposite direction) and there was quite a lot of traffic moving through the roundabout I was in the front of the queue for some time waiting for a gap in the traffic. When there was a break in the traffic I moved into the roundabout maintaining my position in the right-hand lane.”
The claimant made his way towards the stationary utilities in the front, filtering in between them. He had not come to the attention of the utility in lane 2 and it is possible the utility in lane 1 was also unaware of his presence.
The claimant proceeded towards the front but did not maintain a stationary position nor put his foot down. His answer to Q82 was:
“So, as that car was coming (the car in the roundabout coming from the south) I’ve seen it so I started to slow down. I had the clutch in and just started to apply some brake and I’m pretty sure I had my feet out by that stage and it all just happened so quick and all so simultaneously.”
The claimant proceeded to filter his bike between two stationary lanes of traffic. Utilities that both moved off vehicle 1 to move to turn left and vehicle 2 to enter the roundabout and go straight ahead.
The claimant’s first description of the collisions was that vehicle 1 struck him and knocked him into vehicle 2. This history was initially provided to the police and ambulance officers. This may have been the case.
The second version was that vehicle 2 collided with his bike knocking him into vehicle 1. This could also have been a reason he appeared to need to make a sudden correction as viewed by the 61-year-old witness.
The statement of Ms Browne is an independent version of events. She saw the claimant moving very slowly through the line of traffic. She reported all three vehicles “waiting to give way before beginning to continue on through the roundabout”. She makes no mention of brake lights on.
Ms Browne reported, “the utility on the right-hand side made contact with the motor cycle, then the motor cyclist made contacted by the car on his left. The motorcyclist was knocked to the ground”.
This supports the latter version provided by the claimant that impact first occurred with the vehicle on the right in lane 2. He then clipped the vehicle on the left and fell towards the right hand side losing his balance.
Critical to the issue of liability is whether the claimant was lane filtering where it was safe to do so. The claimant submitted that the geography and layout of the area was such that the two laned road had “ample space for a lane filtering motorcycle to pass safely between traffic”.
Whilst the submission of the claimant contends the road width was sufficient to consider it a safe location, the position of the claimant coming to a halt between two utilities situated at the front of the queued traffic has put him at risk of harm.
The location of the claimant’s lane filtering in the immediate vicinity of the point of impact according with an unbroken solid white line. Lane filtering is not permitted in this situation.
The claimant did not state exactly where he was located on the roadway, whether partly on lane 1 or partly on lane 2. If he was “in between” the two utilities, he would have been on the unbroken line.
For the claimant to filter in those circumstances is contrary to the road rules. The claimant did not position himself where either the utility in lane 1 or 2 could note his presence. It is clear from all statements that the other vehicles were already in position stationary waiting to enter the roundabout watching the traffic entering the roundabout from the southerly direction.
The insured did not see him or hear him until he had entered the roundabout and noticed a motorcycle in his side mirror. I accept that the insured’s driver had his attention drawn to oncoming traffic entering the roundabout from the south and those travelling across his path to enter Chittaway Road.
The conduct of the claimant in filtering where he did and positioning himself at or near the unbroken line before the give-way line at the roundabout was not a location that the stationary vehicles could see him and was inherently unsafe.
Whilst the claimant considered his position relative to vehicle 2 “I was right up in line with his front quarter panels, in line or slightly in front of this front passenger window”. The claimant if in that position could not have known “the insured did not hit the brakes until after her had hit him”.
The claimant sandwiched himself between the two utes, the left ute which if turning left may move out closer to the right side of the lane 1 and the right ute moving ahead which required a slight left movement to enter the roundabout as in such situations the lane is curved and not straight. The photograph evidence produced at photographs 8 -13 depicts that any vehicle entering the roundabout is required to make a diagonal movement to enter the laneways.
I am persuaded by the insurer’s submission that,
“that the evidence does not support a finding that the claimant was stationary at the front of the queue of the roundabout. Rather, it is the insurer’s position that the claimant was still in the process of lane filtering when the vehicles commenced to move off from the roundabout.”
The claimant’s evidence was he was moving slowly and though he had his feet out, but there is no mention they were on the ground and that he came to a complete stop.
Noting the point of impact on the insured’s vehicle, that “the claimant’s motorcycle impacted with the rear tray” and subsequently caused the claimant to lose balance and impact with the rear of the unidentified ultility in the left lane is consistent with the second witness who reported to Constable Pullen that evening “I saw the motorcyclist appear to correct the motorbike. Then I saw the bike and rider fall to the right side of the road”.
I find that the evidence supports the following findings of fact:
(a)     the insured vehicle was stationary in lane 2, at the front of the queue of the southbound traffic, waiting for a break in traffic to enter the roundabout;
(b)     the unidentified utility was stationary in lane 1, at the front of the queue of the southbound traffic, waiting for a break in traffic to enter the roundabout;
(c)     the claimant was attempting to lane filter and was positioned at the rear of the utilities in lanes 1 and 2 when those vehicles commenced to enter the roundabout, and
(d)     the insured driver proceeded into the roundabout, staying wholly within the right hand lane when at a point, shortly after taking off, the claimant’s motorcycle has impacted with the rear tray of the insured utility, causing the claimant to lose balance and to impact with the rear of the unidentified utility in the left lane.
Attempting to filter at the front of a roundabout or near to the front of a roundabout in heavy traffic is inherently unsafe. The location of filtering was over unbroken lines and this is contrary to the Road Rules. A vehicle must not cross over the unbroken line and the claimant’s positions between both vehicles was not in either lane. The location was also where the lanes were travelling in different directions, lane 1 travelling left and straight and lane 2 travelling straight and right according to the lane markings depicted in the photographs tendered.

Wholly or mostly at fault

The police report found that the claimant was responsible for the accident. Whilst they did not attend the accident, they investigated the circumstances and made a determination recorded in case report C79003022 upon receive numerous statements as follows:
“it is the position of the Police that it is failure of Ellul to navigate lane filtering in the appropriate/safe manner.”
The claimant considers that both the unidentified utility and the insured were responsible for the accident and that he should not be considered wholly at fault.
The initial determination and the subsequent review found the claimant was wholly at fault.
In final submissions the insurer made a submission that the claimant was wholly or mostly at fault.
When consideration of “fault” in the Motor Accident Injuries Act 2017 (MAI Act) it is defined as “negligence or any other tort” as per Part 4 of the MAI Act. This is relative to damages claims.
In disputes contained in Part 3, s 3.1 (2) provides that statutory benefits are payable (unless limited or restricted by other provisions in Part 3:
(a) whether or not the motor accident was caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, or
(b) even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.
The importance of fault is relevant to the period post 26 weeks, where entitlement cease if the injured person “is wholly or mostly at fault”. Here fault can mean negligence, liability, culpability and responsibility.
Termination of benefits – ss 3.11 and 3.28. If the accident was caused wholly or mostly by the fault of the injured person (claimant).
The initial liability determination of the insured was that the claimant was “wholly at fault”. The interpretation being there was no fault on the part of any other person or thing for the cause of the accident. In a situation where there are two or more cars involved, it requires a consideration of all the vehicles involved and their part in the accident. In particular, whether the owner or driver of that other vehicle/s owed a duty of care to that claimant, breached that duty and that breach caused injury.
In the case of a finding of mostly at fault, the issue is whether the accident was caused by the injured person, or another party or the insured and if there are contributing actions by more than one party, the injured person’s proportion to be mostly at fault required a contribution greater than 61%.
The application of the common law and enacted law applies to ss 3.38, 3.11(2) and 3.28(2).
Also the Civil Liability Act 2002 in particular s 5R requires an objective test to be applied and this is the standard of care of a reasonable person in the claimant’s position taking into account what the claimant knew or ought to have known at the time.
In the circumstances of this accident, there are the actions of the claimant, the actions of the insured situated in lane 2 and the actions of the other vehicle situated in lane 1 to be considered.
Having reviewed the actions of the claimant, his evidence and the evidence all the witnesses produced in this matter, I find that there is insufficient information to apportion any fault to the utility situated in lane 1. As to the vehicle in lane 2, the insured’s driver did not see or hear the claimant until after the impact. It was only on impact that he looked into the side mirror and noticed the claimant off his bike at the rear of his vehicle.
The insured’s contribution to the accident amounts to his failure to keep a proper lookout in the circumstances where checking in his side and rear vision mirrors before he moved off into the roundabout should have taken place. Whilst a driver cannot anticipate every possible action of those around him a reasonable driver would have made a check of surrounds. I assess the percentage of negligence at 10% contributory negligence.
The actions of the claimant in riding his motorcycle near to the front of waiting vehicles seeking to enter the roundabout in a location where filtering is prohibited, is the conduct which a reasonable driver or rider in this case (see High Court’s decision of Inbree) having knowledge of the road rules (Regulation 151A) would not have undertaken. It was unsafe to do so, in breach of the road rules, in heavy traffic where the distance between the two vehicles at the time was too narrow for such a manoeuvre and at a section where the vehicles were not travelling in the same direction. The conduct of the claimant is assessed at 90% contributory negligence.
I find that in the circumstances the motor accident was caused mostly by the fault of the injured person.
Whilst the claimant has been unsuccessful in his application, he retained legal representation and the nature of the dispute required written submissions and legal advice. Accordingly,I allow costs in the amount allowed as the regulated fee of $1,919 plus GST.

Legislation

In making my decision and conducting my review I have considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017;
· Motor Accident Guidelines 2017, and
· Road Rules 2014- Regulation 151A.

Conclusion

My determination of the Miscellaneous Claim is as follows:

For the purposes of s 3.28 or s 3.36 the motor accident was caused mostly by the fault of the injured person.
Effective date: This determination takes effect on 5 September 2024.
Legal costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,919 plus GST.

[2024] NSWPIC 491

5 September 2024